What moral responsibility?

The ongoing saga of Panama Leaks, along with its possible consequences for our ruling political party and its governing family, has the entire nation in a state of frenzy. On the one hand, opposition parties, along with a significant fraction of the media, are clamoring for heads to roll – the fanatics want the Prime Minister to resign from office immediately, while others demand for (at least) an independent inquiry to be conducted, outside the influence of the Prime Minister or his government. On the other hand, more-loyal-than-the-king members of the ruling party, who hold public office at the expense of the taxpayer, have mounted a passionate (though disingenuous) defence of Prime Minister’s prodigal children, as though these non-tax-paying citizens were institutions of the State! And maybe, for individuals like Pervez Rashid, Rana Sanaulla, and Daniyal Aziz, protecting children of the Sharif family is more important that upholding the cause of due process and institutional transparency. Either way, lost somewhere in the myriad of press-conferences, sensational talk-shows and suspect trips to London, we seem to have lost sight of the substantive issues raised by Panama Leaks, and how we might resolve the same.

At the very outset, a simple truth must be stated: politics is not the same as law. Just the way democracy is not the same as constitutionalism. While the empire of law functions through strict adherence to substantive and procedural due process, the realm politics incorporates public opinion and moral responsibility. Iceland’s Prime Minister did not resign because of some compulsion in the law, but instead did so as a result of political (and moral) pressure. In the same breath, while (for now) there is no express provision of the Constitution or the law that requires Prime Minister Nawaz Sharif to resign from office, it would be politically prudent for him to step aside, in order to demonstrate his commitment to a transparent and independent probe into the leaks.

And, truth be told, a personal resignation would do no damage to his governing authority – PML-N, including almost a dozen members from Sharif family, would continue to be in power, seeking Raiwand’s guidance every step of the way.

But this is a purely political choice; one that emanates from personal morality, as opposed to command of the law.

From the practical and legal perspective, there is much work to do done, in order to comprehensively address the plethora of disturbing issues raised by Panama Leaks. And for this, a systematic approach must be adopted.

First: facts. To begin with, our investigative agencies (or a Commission) must conduct an extensive fact-finding exercise. What precisely is the true account of asset-ownership by the Sharif family? Who owns what, and since when? And this is a daunting exercise. For this purpose, financial and legal experts will have to parse through multiple layers of corporate veil to arrive at the true ‘owner’ of offshore companies, domestic and foreign corporations, shares, and properties. When the ownership trail runs cold in this regard, as it necessarily will from time to time, meticulous investigative work will have to be done, in collaboration with international investigative and forensic agencies, to arrive at the truth.

Two: source of funds. Once the true state of accounts and ownerships has been ascertained, the investigators will have to establish the source of funds that were used to acquire the assets in question. Were these funds generated in Pakistan? Were they lawfully earned? Were requisite taxes and other regulatory obligations paid in regards to these funds? And finally, were they transferred into foreign accounts through lawful means and recognized banking channels?

Three: disclosure. After the herculean exercise of asset ownership and source of funds has been conducted, the investigation will then have to turn to the issue of disclosure. Is the Prime Minister, along with his family members, under a legal obligation to disclose the full extent of their personal wealth? Did he and his family declare the assets in their respective tax statements and electoral filings? Did the Prime Minister, or his family members, fail in their requisite disclosure requirements? Not just now, but also in past filings? Or is the family business really structured in such a manner than the head of Sharif family – who lives in one of the largest and most lavish abodes of the world – really owes the State no more than a few thousand rupees in tax money?

Four: consequences. If it is discovered that now, or anytime in the past, the Prime Minister or his family members concealed their personal wealth (as is becoming apparent now, at least to the extent of Prime Minister’s sons), the next issue would be to determine what legal consequences, if any, does the same attract? Is it simply a minor breach of tax and/or other financial transactions law? Or does it also violate the mandate of the election laws? Is the violation significant enough to attract the disqualifications enumerated under electoral laws or Article 62 and 63 of the Constitution?

Five: legal process. For any real political consequences to materialize, a long drawn-out legal process must be followed. Even after an independent investigation comes to the conclusion, based on prosecutable facts, that the Prime Minister and his family members do, in fact, own assets beyond their stated means, which were acquired through illegal funds, and were then concealed from legally required disclosures, entailing legal consequences, a formal judicial verdict in regards to the same must be procured. A court of competent jurisdiction will have to hold the Prime Minister and/or his family members guilty, in a manner that entails consequences in regards to Article 62 and 63 of the Constitution. Thereafter, for the purpose of disqualification, notwithstanding Iftikhar Chaudhary’s jurisprudence in Yousaf Raza Gillani case, the matter would have to be referred to the Speaker of the National Assembly, under Article 63(2) of the Constitution. And, in case the Speaker is of the opinion that disqualification is warranted, the same must then be referred to the Election Commission, which shall “decide” the matter as to the Prime Minister’s disqualification from the National Assembly.

In all, the realistic possibility of this process being completed, from start to finish, in a transparent manner, is slim – at least within the next two years of the incumbent government’s tenure.

In the circumstances, the only real possibility of the Prime Minister resigning from office is out of moral responsibility. And therein lies the rub.

In Pakistan, our culture seems averse to accepting that small inconveniences such as ‘morality’ are of any consequence to political power. The PML(N) leadership recognizes that the current pressure being exerted on them is temporary in nature. All they need to do is hold on to power a little longer, turning a deaf ear to the clamor of morality. And as our hectic breaking-news cycle moves onto the next news of the day or week, we will all gradually move on too. And Panama Leaks – like the Swiss Bank accounts, Memo-gate and Model Town Massacre – will be a relic of the past.